BUSINESS USER AGREEMENT
PLEASE READ CAREFULLY BEFORE DOWNLOADING THE APP FROM THIS WEBSITE OR UPLOADING ANY CONTENT.
This business user agreement (RUA) is a legal agreement between you (Business or you) and Pummel Pty Ltd ACN 610 587 089 of UNIT 1 53 TOWNSHIP DRIVE WEST BURLEIGH QLD 4219 (Licensor, us or we) for:
- your use of Zippy.com.au mobile application software (App);
- any online or electronic documents provided to you in connection with the App (Documents);
- the content you upload onto the App through our interface (Interface);
- and your conduct with regard to how you advertise and provide rewards, saving, promotions or customer loyalty programs (Rewards) to end users (Customers) in connection with the App.
We licence use of the App, the Documents and the Interface to you on the basis of this RUA and subject to any rules or policies applied by us, located here (Our Rules). We do not sell the App, the Interface or Documents to you. We remain the owners of the App, the Interface and Documents at all times.
If you do not agree to the terms of this RUA, we will not license the App, the Documents and use of the Interface to you and you must stop and are prohibited from uploading onto the App through our Interface. You have the right to withdraw from your transaction without charge and without any reason before uploading content through our Interface. However, you will lose the right to cancel the transaction once you have uploaded content through our Interface.
You should print a copy of this RUA for future reference.
1.1 The App is a business to customer service which allows you, through use of the Interface, to upload Rewards for access by Customers who have downloaded our App. By uploading content and Rewards on the Interface you agree and acknowledge:
(a) you are responsible for providing details on how a Customer may claim a Reward when you upload the Reward with our Interface;
(b) the service we provide to you is limited to use of the Interface and the services accessible through the App (Services) which primarily consists of a forum through which you can upload Rewards for Customers to view and take advantage of;
(c) you are responsible and liable for the content and representation uploaded by you in connection with the Reward and warrant that any such content and representations complies with the Australian Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law);
(d) you supply the goods or services offered in the Rewards and we are not responsible or liable for the provision of those goods or services to Customers or any other third party;
(e) you accept all responsibility and liability to Customers for failing to provide the Rewards in accordance with the content and representations you provide.
1.2 The terms of this RUA apply to the App or any of the Services, including any updates or supplements to the App or any Service, unless they come with separate terms, in which case those terms apply. If any open-source software is included in the App or any Service, the terms of an open-source licence may override some of the terms of this RUA.
1.3 We may change these terms at any time by sending you an SMS with details of the change or notifying you of a change when you next start the App. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Services.
1.4 From time to time updates to the Interface may be issued through our website. Depending on the update, you may not be able to use the Services until you have downloaded or streamed the latest version of the Interface and accepted any new terms.
1.5 You may be charged by your service providers for internet access on the computer, mobile telephone or handheld devices that are controlled by you (the Devices) to upload content onto the Interface. You accept responsibility in accordance with the terms of this RUA for the use of the App, the Interface or any Service on or in relation to any Device, whether or not it is owned by you.
1.7 By using the App, the Interface or any of the Services, you consent to us collecting and using technical information about the Devices and related software, hardware and peripherals for Services that are internet-based or wireless to improve our products and to provide any Services to you.
1.8 Certain Services will make use of location data sent from the Devices. You can turn off this functionality at any time by turning off the location services settings for the App or the Interface on the Device. If you use these Services, you consent to us and our affiliates’ and licensees’ transmission, collection, maintenance, processing and use of your location data and queries to provide and improve location-based and road traffic-based products and services. You may withdraw this consent at any time by turning off the location services settings on your Device.
1.9 The App, the Interface or any Service may contain links to other independent third-party websites (Third-party Sites). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
1.10 Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
2. GRANT OF SCOPE AND LICENCE
2.2 You may:
- (a) download or stream a copy of the App onto your Device and view, use and display the App on the Device;
- (b) upload information through the Interface; and
- (c) use the Services,
3. UPLOADING REWARDS
3.1 You must strictly comply with the requirement set out in conditions 5, 6 and 7 when uploading any content in relation to Rewards on the Interface.
3.2 Rewards will include a business loyalty program subject to our agreement.
3.3 Customers may claim Rewards by scanning a QR code in-store (QR Code) that is unique to you.
3.4 If your Reward is subject to terms and conditions it is your responsibility to publish and include the terms and conditions when uploading the Reward on the Interface. We accept no responsibility or liability for any claim by a Customer or a third party for your failure to provide a Reward in accordance with the description provided in your upload or your failure to include specific terms and conditions on how a Reward may be accessed by a Customer.
3.5 You agree to be bound by the terms and conditions you upload in connection with the Reward and will use all resources and best endeavours to provide the Reward described to Customers in full and without limitation except where specifically noted in your terms and conditions.
4. CHARGES AND PAYMENT
4.1 You may download the App and upload information on the Interface free of charge subject to the provisions of condition 4.2.
4.2 A fee of $1.00 plus GST per Existing Customer (Subscription Fee) will be charged to you per month for a maximum of 12 months.
4.3 For the purposes of condition 4.2:
- (a) A “Month” commences on the calendar month that an Existing Customer uses the App to claim a Reward.
- (b) An “Existing Customer” is a Customer who is an existing Customer of the Licensor, who has downloaded the App or is already a member of the Licensor’s platform prior to your contact with that Customer.
- (c) If you recruit a new Customer and that Customer is not an Existing Customer, no Subscription Fee is payable.
4.4 If the Subscription Fee is payable we will invoice you within 2 business days of the end of the Month.
4.5 You must pay each invoice submitted by us within 30 days of the date of the invoice in full and cleared funds to a bank account nominated by us in the invoice. Time for payment shall be of the essence in this RUA.
5. LICENCE RESTRICTIONS
Except as expressly set out in this RUA or as permitted by any local law, you agree:
- (a) not to copy the App, the Interface or Documents except where such copying is incidental to normal use of the App, or where it is necessary for the purpose of back-up or operational security;
- (b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App, the Interface or Documents;
- (c) not to make alterations to, or modifications of, the whole or any part of the App or the Interface, or permit the App, the Interface or any part of it to be combined with, or become incorporated in, any other programs;
- (d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or the Interface or attempt to do any such thing except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the App or the Interface with another software program, and provided that the information obtained by you during such activities:
- (i) is used only for the purpose of achieving inter-operability of the App or the Interface with another software program;
- (ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
- (iii) is not used to create any software that is substantially similar to the App or the Interface;
- (e) to keep all copies of the App and the Interface secure and to maintain accurate and up-to-date records of the number and locations of all copies of the App and the Interface;
- (f) to include our copyright notice on all entire and partial copies you make of the App and the Interface on any medium;
- (g) not to provide or otherwise make available the App or the Interface in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
- (h) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App, the Interface or any Service (Technology), together with Licence Restrictions.
6. PROHIBITED USES
6.1 You may use our App, the Interface and the Services for lawful purposes. You may not use our App, the Interface or the Services:
- (a) in any way that breaches any applicable local, national or international law or regulation;
- (b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
- (c) for the purpose of harming or attempting to harm minors in any way;
- (d) to send, knowingly receive, upload, download, use or re-use any material which does not comply with our content standards;
- (e) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
- (f) to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
6.2 You also agree not to access without authority, interfere with, damage or disrupt:
- (a) any part of our App or the Interface;
- (b) any equipment or network on which our App or Interface is stored;
- (c) any software used in the provision of our App or Interface; or
- (d) any equipment or network or software owned or used by any third party.
7. CONTENT STANDARDS
7.1 These content standards apply to any and all material which you upload or contribute to our App, the Interface or the Documents (contributions), and to any interactive services associated with it. You must comply with the spirit and the letter of the following standards. The standards apply to each part of any contribution as well as to its whole.
7.2 Contributions must:
- (a) be accurate (where they state facts);
- (b) be genuinely held (where they state opinions);
- (c) comply with applicable law in the Australia, in particular the Australian Consumer Law.
7.3 Contributions must not:
- (a) contain any material which is defamatory of any person;
- (b) contain any material which is obscene, offensive, hateful or inflammatory;
- (c) promote sexually explicit material;
- (d) promote violence;
- (e) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- (f) infringe any copyright, database right or trade mark of any other person;
- (g) be likely to deceive or mislead any person;
- (h) be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
- (i) promote any illegal activity;
- (j) be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety;
- (k) be likely to harass, upset, embarrass, alarm or annoy any other person;
- (l) be used to impersonate any person, or to misrepresent your identity or affiliation with any person;
- (m) give the impression that they emanate from us, if this is not the case; or
- (n) advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
8.1 You warrant that:
- (a) you have authority to bind any business on whose behalf you use our Interface and our App to publish and provide the Rewards to Customers;
- (b) you have the business capacity to provide and service the Rewards published and uploaded by you on the Interface;
- (c) you accept responsibility and liability towards any Customer for failure to provide the Rewards; and
- (d) all representations, warranties, guarantees and/or any other documentation or information uploaded or provided by you in connection with the Rewards is true and correct and you shall not engage in any misleading and deceptive conduct or breach the provisions of the Australian Consumer Law in providing that documentation or information.
8.2 You agree to indemnify us to the fullest extent permitted by law for any claim for loss or damage made against us or you by you or any third party in connection with your use of the App, the Interface or the Documents that is results from a breach by you of this RUA or any warranty provided by you in accordance with condition 6.1.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 You acknowledge that all intellectual property rights in the App, the Interface and the Documents anywhere in the world belong to us or our licensors, that rights in the App, the Interface and the Documents are licensed (not sold) to you, and that you have no rights in, or to, the App, the Interface or the Documents other than the right to use each of them in accordance with the terms of this RUA.
9.2 You acknowledge that you have no right to have access to the App or the Interface in source-code form.
10. AUSTRALIAN CONSUMER LAW
10.1 You agree that Schedule 2 of the Australian Consumer Law does not apply to this RUA or any other agreement we have with you.
10.2 If it is found by a court of competent jurisdiction that the Services provided to you under this RUA do constitute a contract for the provision of services as defined under Schedule 2 of the Consumer Act, then clauses 8.3 – 8.4 apply.
10.3 Our liability for a breach of a condition or warranty implied by Schedule 2 Part 3-2 Division 1 of the Consumer Act is hereby limited to:
- (a) in the case of goods, any one or more of the following:-
- (i) the replacement of the goods or the supply of equivalent goods;
- (ii) the repair of the goods;
- (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
- (iv) the payment of the cost of having the goods repaired; or
- (b) in the case of services:-
- (i) the supplying of the services again; or
- (ii) the payment of the cost of having the services supplied again.
10.4 Our liability under Schedule 2, Part 3-2 Division 1 s55 of the Consumer Act is expressly limited to a liability to pay to you an amount equal to:
- (a) the cost of replacing the goods;
- (b) the cost of obtaining equivalent goods; or
- (c) the cost of having the goods repaired,
whichever is the lowest amount.
11. LIMITATION OF LIABILITY
11.1 You acknowledge that the App and the Interface has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the App and the Interface as described in the Documents meet your requirements.
11.2 We only supply the App, the Interface and Documents for domestic and private use. We have no liability to you and you agree to fully indemnify us for any loss of profit, loss of business, business interruption, or loss of business opportunity suffered by you as a result of your use of the App, the Interface or uploading documentation and/or information on our interface.
11.3 By downloading the App or uploading onto the Interface you agree to indemnify us from any loss of damage suffered by you or any third party claim against you in connection with your use of the App, the Interface or the Documents.
11.4 This clause 11 shall survive termination of this RUA.
11.5 Nothing in this RUA shall limit or exclude our liability for:
- (a) death or personal injury resulting from our negligence;
- (b) fraud or fraudulent misrepresentation; and
- (c) any other liability that cannot be excluded or limited by Queensland law.
12. SUSPENSION AND TERMINATION
12.1 We will determine, in our discretion, whether there has been a breach of the RUA or the acceptable use policies through your use of our App and the Interface. When a breach of this policy has occurred, we may immediately terminate this RUA by written notice to you.
12.2 On termination for any reason:
- (a) all rights granted to you under this RUA shall cease;
- (b) you must immediately cease all activities authorised by this RUA, including your use of any Services;
- (c) you must immediately delete or remove the App and the Interface from all Devices, and immediately destroy all copies of the App, the Interface and Documents then in your possession, custody or control and certify to us that you have done so;
- (d) we may remotely access the Devices and remove the App and the Interface from all of them and cease providing you with access to the Services; and
- (e) any Reward offered by you will be suspended and Customers may not be able to access those rewards or savings;
- (f) any Subscription Fee or any outstanding moneys due to us shall become immediately due and payable.
12.3 We may also take all or any of the following actions:
- (a) immediate, temporary or permanent removal of any posting or material uploaded by you to our App or the Interface;
- (b) issue of a warning to you;
- (c) legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
- (d) disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
12.4 We exclude liability for actions taken in response to breaches of this RUA. The responses described in this RUA are not limited, and we may take any other action we reasonably deem appropriate.
13. COMMUNICATION BETWEEN US
13.1 If you wish to contact us in writing, or if any condition in this RUA requires you to give us notice in writing, you can send this to us by e-mail or by prepaid post toPummel Pty Ltd at UNIT 1 53 TOWNSHIP DRIVE WEST BURLEIGH QLD 4219 and email@example.com. We will confirm receipt of this by contacting you in writing, normally by e-mail.
13.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your request for the App or for access to the Interface.
14. EVENTS OUTSIDE OUR CONTROL
14.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this RUA that is caused by any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks or failure of a Customer to take advantage of a Reward (Event Outside Our Control).
14.2 If an Event Outside Our Control takes place that affects the performance of our obligations under this RUA:
- (a) our obligations under this RUA will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
- (b) we will use our reasonable endeavours to find a solution by which our obligations under this RUA may be performed despite the Event Outside Our Control.
15. OTHER IMPORTANT ITEMS
15.1 We may transfer our rights and obligations under this RUA to another organisation, but this will not affect your rights or our obligations under this RUA.
15.2 You may only transfer your rights or obligations under this RUA to another person if we agree in writing.
15.3 If we fail to insist that you perform any of your obligations under this RUA, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
15.4 This RUA and our Terms of Website Use constitute the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
15.5 Each of the conditions of this RUA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
15.6 Please note that this RUA, its subject matter and its formation, are governed by Queensland law. You and we both agree that the courts of Queensland will have non-exclusive jurisdiction.
This RUA has been entered into on the date you accepted it.